Sample clearance liability and the resulting court cases and
controversies surrounding illegally used samples have been a major topic of
conversation and debate in recent years. The music industry has seen its share
of high profile lawsuits over sample clearance. I will discuss two cases that
have been decided and one recent instance that has yet to be decided.
First we will take a look at the 2012 settlement of Kanye
West, Jay Z and Sly Johnson. West and Jay Z’s collaborative album Watch the Throne featured a song
entitled “The Joy” which utilized an unauthorized sample of Sly Johnsons song
“Different Strokes.” Johnson claims that West attempted to gain authorization
for use of the song in 2010 for his album Beautiful
Dark Twisted Fantasy. West never obtained the authorization and decided to
use it on “Watch the Throne.” The terms of the settlement have not been
disclosed publically.
The fact that Kanye West was unable to gain authorization
for use of the sample may have been a deterrent for most artists, but this did
not stop Mr. West. Evidently he
determined that the risk was worth the reward. I am sure he took into
consideration the financial clout that he and Jay Z possessed and was confident
that a settlement could be reached if a lawsuit was filed. Most record labels
and artist do not possess the financial capital to risk moving forward with the
use of an unauthorized sample.
The second case we will take a look at is the lawsuit filed
against Madonna and producer Robert Pettibone by VMG Salsoul. VMG Salsoul, the
copyright owner of the composition called “Love Break” claims that Madonna
sampled a Horn Hit from the composition. VMG went as far as to claim that
Madonna and Pettibone attempted to hide or disguise the sample. U.S.
District Court Judge Beverly O'Connell
saw it differently and ruled that “...any sampling of the Horn Hit was
de minimis or trivial.”
Even though this case was ruled in favor of the recording
artist and producer, it still serves a reminder to all artist, labels and
producers that we must be aware of the potential of sample liability. Something
like a single Horn Hit may seem trivial to most, but if used repetitively
throughout a composition can cause some undue fuss and stress.
Lastly we will look at Drakes recent legal battle with jazz
musician, Jimmy Smiths’ Estate. On Drake’s latest album, “Nothing Was The
Same,” the rapper used a sample from Smith’s 1982 song “Jimmy Smith Rap.” On
Drakes song, “Pound Cake/Paris Morton Music 2” he uses a 35 second monologue
from “Jimmy Smith Rap.” Smith’s Estate claims that Drake never obtained
permission to use the sample and is asking for more than $300,000 in damages. Apparently
the credits in the album liner notes state otherwise. In this example we can
clearly see that even if we attribute proper credit to the copyright holder or
content creator we still need to make sure we have the appropriate licensing to
utilize the sample.
In looking to start my own independent record label, I will
look at using samples only at a bare minimum. If a sample must be used then we
will do our best to ensure that we contact the content creators, publishers and
record labels to gain the proper licensing to utilize the sample.
